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ON APPEAL FROM CARTER CIRCUIT COURT. HONORABLE REBECCA K. PHILLIPS, JUDGE. NO. 2011-CR-00101.
FOR APPELLANT: Molly Mattingly, Department of Public Advocacy.
FOR APPELLEE: Jack Conway, Attorney General, James Hays Lawson, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE KELLER. All sitting. Abramson, Cunningham, Keller and Scott, JJ. concur. Venters, J., concurs in result only. Noble, J. dissents by separate opinion in which Minton, C.J. joins.
The Carter Circuit Court convicted General Jackson Tackett, III (Tackett) of two counts of first degree sexual abuse and three counts of first degree sodomy of two victims, Sarah and Nicholas. The court sentenced Tackett to thirty (30) years' imprisonment. He appeals his sentence as a matter of right under Ky. Const. § 110(2)(b). Tackett raises eight issues on appeal. He argues that: (1) he was unduly prejudiced by the irrelevant and bolstering testimony of Dr. Drema Hunt and Dr. Gail Fineburg; (2) he was unduly prejudiced by introduction of Kentucky Rule of Evidence (KRE) 404(b) evidence; (3) he was unduly prejudiced by Sarah's victim impact testimony and by the bolstering testimony of Sarah and Nicholas; (4) he was unduly prejudiced by the bolstering testimony from other witnesses; (5) he was unduly prejudiced by the admission of a picture Nicholas drew in elementary school; (6) the trial court violated his right to a fair trial by failing to excuse a juror; (7) he was denied a right to a speedy trial; and (8) he was denied a fair trial because of the cumulative impact of all of these alleged errors. The Commonwealth responds that Dr. Hunt's and Dr. Fineburg's testimony does not amount to palpable error, and that there was no improper KRE 404(b) evidence; furthermore, the Commonwealth argues that the six remaining issues should be brought under an ineffective assistance of counsel claim pursuant to RCr 11.42. Although this Court would like to see briefs from the Commonwealth which actually address all the issues raised on appeal, we still Find no merit in Tackett's other arguments. Consequently, having reviewed the record and the parties' arguments, we affirm.
In June 2011, Tackett returned to the United States from his then home in Guatemala. Upon his arrival, he was arrested and charged with seven counts of sex crimes against two alleged victims, his son,
Nicholas, and Sarah, a female friend of Tackett's children. At the time of trial, Nicholas was 20 years old and Sarah was 18 years old. The events giving rise to the charges occurred approximately ten years prior to trial. The Commonwealth accused Tackett of one count each of First degree sexual abuse, first degree rape and first degree sodomy as to Sarah; and one count of first degree sexual abuse and three counts of first degree sodomy as to Nicholas.
Sarah, the Commonwealth's first witness, testified that her grandmother, who lived on the same street as Tackett, took care of her after school when she was approximately seven (7) years old. As a result, Sarah became friends with Tackett's children, especially Tackett's daughter, Abigail. Sarah testified that she began visiting the Tackett children at their home, but the visits stopped when Sarah moved to Paintsville, Kentucky, when she was approximately nine (9) years old.
Sarah testified about four sexual encounters involving Tackett. The first occurred when she spent the night at Tackett's house with Abigail. Abigail had told Sarah that they were not to leave Abigail's room during the night, but Sarah, who was thirsty, went to the kitchen to get a drink of water. Tackett walked into the kitchen and told Sarah that he would have to punish her for leaving Abigail's room. Sarah testified that Tackett then raped her. Sarah stated it felt like she was being ripped apart but she could not remember any other details about this encounter. A second encounter also took place in the kitchen, when Tackett put his penis in Sarah's mouth. A third encounter took place in " a room with dolls and pink" when Tackett touched her between the legs with his hand. The final encounter Sarah testified about took place in the basement, where Tackett forced Nicholas to sodomize her by putting his penis in her mouth and to rape her.
Sarah testified that she did not tell anyone about these incidents until a few summers before the trial, when she told her mother. At some point, the police became involved and Sarah was ultimately referred to Hope's Place, a children's advocacy center in Ashland, Kentucky, where she reluctantly spoke with a forensic interviewer, Jennifer Kelly.
On cross-examination, Sarah testified that previous allegations of sexual abuse arose when her aunt noticed a difference in her as a person, and her aunt suspected Sarah's father had molested her. At that time, Sarah saw a psychologist and told the psychologist her father never hurt her.
After Sarah testified, the Commonwealth called Nicholas to testify. Nicholas testified he was five (5) years old the first time Tackett sexually abused him. Nicholas said he was asleep in his room when Tackett came and got in bed with him, reached down his pants and began stroking him. According to Nicholas, Tackett then inserted his fingers into Nicholas's rectum. This lasted for ten to fifteen minutes and then Tackett told Nicholas it was just a game and not to tell anyone. Nicholas testified these acts continued once a night or every other night for " quite a while."
Nicholas further testified that when he was seven (7) years old Tackett came in his room and anally sodomized him. Nicholas testified he knew what happened because " it" felt bigger and hurt. Tackett told him if he screamed it would get worse, so Nicholas never made any noise. Nicholas testified that he was afraid to tell anyone because he thought they wouldn't believe him, and they would shun him.
Nicholas also recalled two other specific acts. One occurred when Tackett took
him and Sarah to the basement. According to Nicholas, Tackett stated that he was going to abuse Nicholas's little sister, Juliana, so Nicholas and Sarah offered to take her place. Tackett then made Sarah and Nicholas perform oral sex on him. The second incident occurred at a Holiday Inn when Tackett and Nicholas's mother were getting divorced. According to Nicholas, he and Tackett went for a swim in the hotel's pool after which Tackett anally sodomized him in the hotel room shower.
Nicholas testified that, when he was approximately twelve years old, his parents' divorce was final and Tackett moved to Guatemala, thus putting an end to the abuse. Nicholas told two trusted friends about these incidents; however, he did not tell any adults until he turned 18 years old, when he told his mother, whereupon the police and personnel at Hope's Place became involved. At Hope's Place, Nicholas underwent a recorded forensic interview, which was played to the jury by agreement of the parties.
In addition to the testimony from Sarah and Nicholas, the Commonwealth offered testimony from: Dr. Hunt and Dr. Fineburg, two physicians who examined Sarah and Nicholas at Hope's Place; Jennifer Kelly, a forensic interviewer from Hope's Place; Detective Chris Fraiser with the Kentucky State Police Electronic Crimes Branch; Regina Jackson, a guidance counsel at Nicholas's former elementary school; Sarah's and Nicholas's mothers; and Detective Chris Carter, the lead investigator.
Tackett did not present any evidence. After an hour and twenty (20) minutes of deliberation, the jury returned a verdict, finding Tackett guilty of: first degree sexual abuse of Sarah by touching her between the legs with his hand while in the room with dolls and pink in the Tackett home; first degree sexual abuse of Nicholas by stroking Nicholas's penis while in Nicholas's bedroom; first degree sodomy of Sarah by placing his penis in Sarah's mouth while in the kitchen of the Tackett home; and first degree sodomy of Nicholas by placing his penis in the anus of Nicholas while in Nicholas's bedroom. The jury acquitted Tackett of first degree rape of Sarah in the Tackett kitchen and of first degree sodomy of Nicholas while in a room at the Holiday Inn.
II. STANDARD OF REVIEW.
Tackett did not properly preserve any of his arguments for review. Therefore, we review them for palpable error. Kentucky Rule of Criminal Procedure (RCr) 10.26.
We will reverse under the palpable error standard only when a " manifest injustice has resulted from the error." RCr 10.26. " [T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). When we engage in palpable error review, our " focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.
Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).
With the above standard in mind, we address each of Tackett's arguments on appeal.
A. Testimony from Dr. Hunt and Dr. Fineburg.
Tackett argues that he was unduly prejudiced by irrelevant and impermissible bolstering hearsay testimony from the Commonwealth's witnesses, Dr. Hunt and Dr. Fineburg. The Commonwealth admits
that error occurred but argues that any error was not palpable. We agree with the Commonwealth, although for different reasons.
(1) Dr. Hunt's Testimony.
Dr. Hunt examined Nicholas for Hope's Place on December 29, 2011, when Nicholas was 19 years old, and Dr. Hunt issued a report regarding her findings. At the beginning of Dr. Hunt's testimony, the Commonwealth moved to introduce her report into evidence. The trial court asked Tackett's counsel if he had any objections to the admission of the report; counsel responded that he did not; and the court admitted the report into evidence. The report stated that Nicholas told Dr. Hunt he had been sexually abused and that the perpetrator was his " dad." Counsel for Tackett, who had a copy of the report, was, or should have been, aware of its contents before he affirmatively waived any objection to its admission into evidence. After admitting the report into evidence, the Commonwealth asked Dr. Hunt what Nicholas had told her. Dr. Hunt testified that Nicholas stated that he had been sexually abused and that he had identified the perpetrator. The Commonwealth asked who Nicholas had identified as the perpetrator, and Dr. Hunt responded that Nicholas had said it was, " my dad." Tackett's counsel did not object to this line of questioning or to Dr. Hunt's response. Tackett now argues that this testimony by Dr. Hunt was improper hearsay and bolstering, resulting in undue prejudice and necessitating a new trial.
Generally, statements made by witnesses outside of court are excluded as hearsay when offered to prove the truth of the matter asserted. KRE 801(c) and 802. However, a physician is permitted to testify about statements made by a patient " for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis." KRE 803(4).
This exception to the hearsay exclusionary rule does not open the door to testimony by physicians to all conversations with patients. In Colvard v. Commonwealth, 309 S.W.3d 239, 244 (Ky. 2010), we held that the hearsay exception of KRE 803(4) is founded upon the notion that a declarant seeking treatment has a selfish motive to be truthful because the effectiveness of medical treatment depends upon the accuracy of the information provided. However, we also held that physician testimony regarding the identity of a perpetrator is not relevant to the treatment or diagnosis of a sexual abuse victim and, therefore, does not fall within the KRE 803(4) exception to the hearsay rule.
In Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011), we held that it is palpable error to permit a physician to testify about the identification of the perpetrator by a child victim of sexual abuse. Id. at 373. We did so because it is highly prejudicial for a doctor or other professional to repeat the hearsay statements made by a child-victim who might otherwise be less believable than a medical professional. Id. Tackett argues that, based on our holdings in Colvard and Hoff, the admission of Dr. Hunt's testimony was palpable error, mandating reversal of his conviction.
In response, the Commonwealth argues that Tackett's case differs from Colvard and Hoff because of the ages of the victims in those cases. In Hoff the victim was 12 when the acts occurred and 14 at the time of trial. In Colvard, the victims were six and seven when the acts occurred and
seven or eight at the time of trial. According to the Commonwealth, the identification by a physician of the perpetrator in those cases was inadmissible because it impermissibly bolstered the often unreliable testimony of young children. Here, the Commonwealth argues that, because Nicholas was an adult, Dr. Hunt's identification of Tackett as the perpetrator did not bolster the unreliable testimony of a young child. Rather, it confirmed the more reliable testimony of another adult.
While we disagree with the Commonwealth's argument that the age of a victim at the time of trial is dispositive for analysis under Colvard and Hoff, we nonetheless affirm. The trial court specifically asked Tackett's counsel if he had any objection to the admission of Dr. Hunt's report which identified Tackett as the perpetrator, and he stated that he did not. Dr. Hunt then testified, reiterating what the report stated - that Nicholas identified his father as the perpetrator. Tackett's counsel did not object to this testimony either. In the face of the explicit statement that he had no objection to the entry of the report into evidence and a failure to object to Dr. Hunt's testimony, Tackett cannot now claim that Dr. Hunt's testimony rose to the level of palpable error.
In support of our holding, we look to our case law regarding invited error, because it is instructive if not directly on point or dispositive. In Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011), two defendants were convicted for their roles in a robbery and murder. On appeal, one defendant alleged that the facts failed to support his convictions of additional charges. Id. at 37. However, during the trial he had tendered jury instructions to the judge and referred to evidence which he believed supported instructions on the charges. Id. Therefore, any error in instructing the jury was not merely unpreserved but invited by the defendant. Id. Because a party is generally estopped from arguing an invited error on appeal, we held that the defendant was precluded from arguing that the court erred by instructing the jury as he wanted. Id.
Similarly, in Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011), Mullins was convicted of murder and tampering with evidence and of being a persistent felony offender. While discussing jury instructions, the Commonwealth stated that it wanted a murder instruction and a lesser included offense instruction on manslaughter in the first degree. Counsel for Mullins objected, stating that his client did not want any lesser included offense instructions. The court determined that a manslaughter instruction was appropriate. Counsel for Mullins, while not waiving his objection, then stated that any manslaughter instruction could not be based on extreme emotional disturbance because there was no evidence to support such an instruction. The court agreed and only included a manslaughter instruction based on a theory of intent to cause serious physical injury. Id. at 438.
On appeal, Mullins argued that the trial court erred by not including an extreme emotional disturbance manslaughter instruction. Id. We held that the issue was not only unpreserved, but that it had been waived. Id at 438-39. In doing so, we noted that there is a difference between '" forfeited errors, which are subject to plain [or palpable] error review, and waived errors, which are not . . . [and] ha[ve] held that invited errors that amount to a waiver, i.e. invitations that reflect the party's knowing relinquishment of a right, are not subject to appellate review.'" Id. at 439 (citations omitted).
The aforementioned cases stand for the proposition that a party cannot ask a trial court to do something and, when the court does it, complain on appeal that the court erred. Although the cited cases deal with jury instructions, the proposition has broader application. When, as here, a party not only forfeits an error by failing to object to the admission of evidence, but specifically waives any objection, the party cannot complain on appeal that the court erroneously admitted that evidence. Here, Tackett explicitly stated that he had no objection to the admission of Dr. Hunt's report, which stated that Tackett was the perpetrator. Thus, he explicitly waived any objection to the admission of that evidence, whether by way of the report or through Dr. Hunt's testimony about the report's contents. Because Tackett waived this error, it, like the alleged errors in Quisenberry and Mullins, is not subject to review.
Tackett also argues that Dr. Hunt's testimony regarding Nicholas's hemorrhoidal tag, which could support a finding of sexual abuse, was irrelevant and unduly prejudicial. The Commonwealth argues that the testimony was relevant because it made anal sodomy more probable than less probable without the evidence, and was thus admissible under KRE 401. That is not necessarily accurate, because Dr. Hunt testified the tag could be a result of other causes unrelated to anal sodomy. Regardless of this testimony's relevance, Tackett cannot show what prejudice he may have suffered or a probability of a different result or error so fundamental as to threaten his entitlement to due process of law. Martin, 207 S.W.3d at 3. As a result, Tackett's argument as to this issue also fails.
(2) Dr. Fineburg's Testimony.
Dr. Fineburg supervised but did not conduct the examination of Sarah at Hope's Place. At a bench conference prior to Dr. Fineburg's testimony, the parties agreed that, although Dr. Fineburg had not actually conducted Sarah's examination, she could testify about the examination and its results. During this conference, Tackett's counsel specifically stated that he realized Dr. Fineburg's testimony would contain hearsay; that he and the Commonwealth's attorney had discussed the issue; and that he was " okay with it."
Following the bench conference, Dr. Fineburg testified that Sarah told her that she had been vaginally penetrated at the age of six; however, Dr. Fineburg's examination revealed no abnormal findings. Furthermore, Dr. Fineburg testified that, given the lapse in time between the reported penetration and the examination, she would not expect to find any abnormalities. We note that Dr. Fineburg did not testify that Sarah had identified the perpetrator.
Tackett now argues that Dr. Fineburg's testimony should have been excluded because: it contained impermissible hearsay; it impermissibly bolstered Sarah's testimony; and it was not relevant. As noted above, issues now being raised by Tackett with regard to hearsay and Dr. Fineburg's testimony are not only unpreserved but were specifically waived by Tackett's counsel. It appears this waiver was in keeping with Tackett's strategy to discount Sarah's story by showing a complete lack of physical evidence to support her allegations. Therefore, to the extent admission of Dr. Fineburg's testimony was error, Tackett's counsel invited that error, and we need not further discuss its admissibility.
B. 404(b) Evidence.
KRE 404(b) provides that " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."
Tackett argues the Commonwealth impermissibly elicited such evidence in the form of: (1) the Commonwealth's assertion in opening statement that Tackett had threatened to harm Sarah, Nicholas, and their parents; (2) Sarah's testimony about an incident that occurred in the basement of the Tackett home that was not included in the indictment or the jury instructions; (3) Nicholas's testimony about an incident in the basement involving Sarah that was not included in the jury instructions; (4) Sarah's testimony that one time she thought she saw a flash from a camera when Tackett was not charged with having any photographs or with using a minor in a sexual performance; and (5) Nicholas's testimony that Tackett sexually abused him " once a night, or once every other night for quite a while" when Tackett was not indicted for those multiple acts. These fall into three categories: (1) assertions by the Commonwealth's attorney in opening statement; (2) testimony about unindicted acts; and (3) testimony about acts not included in the jury instructions. None of these alleged errors is preserved; therefore, we analyze them for palpable error.
(1) Opening Statement.
What is said in opening statement is not evidence. Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003). Therefore, anything the Commonwealth said in opening statement could not run afoul of KRE 404(b), which is an evidentiary rule. When the Commonwealth pointed this out in its brief, Tackett changed his argument in his reply brief, arguing the Commonwealth's statements amounted to prosecutorial misconduct. This change in argument, although it has some merit, is not persuasive.
We grant attorneys wide latitude in making opening statements. Id. However,
RCr 9.42(a) requires the prosecutor in his opening statement to " state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it." Thus, " [t]he only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced." Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355, 357 (1933); see Fields v. Commonwealth, 12 S.W.3d 275, 281 (Ky.2000). Further, " it is never proper in an opening statement for counsel to argue the case or to give his personal opinions or inferences from the facts he expects to prove." Turner v. Commonwealth, 240 S.W.2d 80, 81 (Ky.1951).
Kiper v. Commonwealth, 399 S.W.3d 736, 748 (Ky. 2012).
Based on the preceding, the assertions by the Commonwealth's attorney in opening statement could have been deemed inappropriate. However, because Tackett did not object to them, he is required to show that those statements affected the outcome. The objected-to statements by the Commonwealth were short and not unduly emphasized. Furthermore, other than noting the comments, Tackett has failed to establish that, in the context of this case, they had any impact on the jury verdict. Thus, we discern no palpable error.
(2) Testimony About Unindicted Acts.
With regard to Sarah, the indictment charged Tackett with committing one count each of first degree sexual abuse, rape, and sodomy between the years 2002 and 2004. With regard to Nicholas, the indictment charged Tackett with committing one count of sexual abuse and three counts of sodomy between the years 1997 and 2004. The indictment set forth general
information regarding the type of activity. It did not set forth the specific acts, i.e. Tackett raped Sarah in the kitchen. Because of the general nature of the indictment, any acts Sarah and Nicholas testified about - as long as they met the criteria for sexual abuse, rape, and sodomy - fell within the counts of the indictment. Therefore, that testimony was not about uncharged acts.
Only Sarah's testimony about a " light flash" she believed was a camera fell outside the terms of the indictment; therefore, that is the only evidence that is subject to review. In light of the brevity of the testimony and the fact that the Commonwealth found no photographs, this testimony cannot possibly have affected the outcome. Therefore, we discern no palpable error.
(3) Testimony About Acts not Contained in the Jury Instructions.
The trial court, in keeping with our opinions regarding the need to insure unanimous verdicts, closely tailored the jury instructions to the specific acts that could be supported by testimony from Nicholas and Sarah. Tackett did not object to the jury instructions but now argues that Nicholas's and Sarah's testimony about acts that were not included in the instructions somehow violated KRE 404(b). This argument is without merit for four reasons.
First, we note that KRE 404(b) precludes evidence of prior bad acts. It does not preclude evidence of acts within the indictment that are, for whatever reason, not ultimately included in the jury instructions. As we stated above, Sarah's and Nicholas's testimony did not, except as noted, go beyond the bounds of the charges in the indictment. Therefore, the acts they described were not prior acts. Second, as noted by the Commonwealth, jury instructions are tailored to the evidence, the evidence is not tailored to the instructions. See Wright v. Commonwealth, 391 S.W.3d 743, 746 (Ky. 2012), as modified on denial of reh'g (Feb. 21, 2013). Taking Tackett's argument to its logical conclusion, the court and the parties would have to predict accurately before trial exactly what the evidence would show; craft jury instructions accordingly; and only present evidence that exactly conforms to their predictions. That is not how the system works, nor could it work that way, given the unpredictability of witness testimony. Finally, as noted above, the trial court instructed the jury in accord with our recent decisions regarding unanimous verdicts. The instructions included specific references to specific acts and omitted any acts about which the evidence was not clear. That is exactly what we have instructed the courts to do.
For the foregoing reasons, we hold that the court's " failure" to instruct the jury regarding every one of Tackett's alleged acts did not convert evidence regarding those acts into impermissible KRE 404(b) prior bad acts evidence. Furthermore, we hold that the court was not required to instruct the jury regarding each act Sarah and Nicholas testified to in order to prevent that conversion from taking place.
(C) Other Alleged Bolstering
Tackett argues he was unduly prejudiced by the Commonwealth's opening statements in the guilt phase and the bolstering of the victims' testimony by: (1) Sarah's and Nicholas's testimony; (2) Sarah's
and Nicholas's respective mothers' testimony; (3) the testimony of forensic interviewer Jennifer Kelly; (4) the testimony of Detective Carter; and (5) the testimony of Detective Frasier. The Commonwealth argues these, and all the other issues before us, are improperly brought on direct appeal and should instead be brought under an RCr 11.42 motion for ineffective assistance of counsel. Each of these ...